DTAA amended with South Africa — Amendment in Notification No. GSR 198(E), Dated 21–4‑1998 — 10/2015-FT&TR-II — Dated 2–2‑2015

NOTIFICATION NO. 10/2015-FT&TR-II

New Del­hi, the 02^nd  Feb­ru­ary, 2015

Where­as the annexed Pro­to­col amend­ing the Agree­ment between the Gov­ern­ment of the Repub­lic of India and the Gov­ern­ment of the Repub­lic of South Africa for the avoid­ance of dou­ble tax­a­tion and the pre­ven­tion of fis­cal eva­sion with respect to tax­es on income was signed in Pre­to­ria on the 26th day of July, 2013;

And Where­as, the date of entry into force of the said pro­to­col is the 26th day of Novem­ber 2014, being thir­ty days after the date of receipt of lat­er of noti­fi­ca­tions of com­ple­tion of the pro­ce­dures required by the respec­tive laws for bring­ing the Pro­to­col into force, in accor­dance with Arti­cle II of the said Protocol;

Now, There­fore, in exer­cise of the pow­ers con­ferred by sec­tion 90 of the Income-tax, Act 1961 (43 of 1961), the Cen­tral Gov­ern­ment here­by noti­fies that all the pro­vi­sions of the said Pro­to­col annexed here­to shall be giv­en effect to in the Union of India with effect from the 26th day of Novem­ber 2014.

PROTOCOL AMENDING THE AGREEMENT

BETWEEN

THE GOVERNMENT OF THE REPUBLIC OF INDIA

AND

THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA

FOR

THE AVOIDANCE OF DOUBLE TAXATION ANDTHE PREVENTION OF FISCAL

EVASION

WITH RESPECT TO TAXES ON INCOME,

SIGNED AT NEW DELHI ON 4 DECEMBER 1996

PREAMBLE

The Gov­ern­ment of the Repub­lic of South Africa and the Gov­ern­ment of the Repub­lic of India;

DESIRING to amend the Agree­ment for the avoid­ance of dou­ble tax­a­tion and the pre­ven­tion of fis­cal eva­sion with respect to tax­es on income, signed at New Del­hi on 4 Decem­ber 1996 (here­inafter referred to as “the Agreement”);

HAVE AGREED AS FOLLOWS:

ARTICLE I

Arti­cle 25 of the Agree­ment shall be delet­ed and replaced by the following:

“ARTICLE 25

EXCHANGE OF INFORMATION

1. The com­pe­tent author­i­ties of the Con­tract­ing States shall exchange such infor­ma­tion as is fore­see­ably rel­e­vant for car­ry­ing out the pro­vi­sions of this Agree­ment or to the admin­is­tra­tion or enforce­ment of the domes­tic laws con­cern­ing tax­es of every kind and descrip­tion imposed on behalf of the Con­tract­ing States, or of their polit­i­cal sub-divi­sions or local author­i­ties, inso­far as the tax­a­tion there­un­der is not con­trary to the Agree­ment. The exchange of infor­ma­tion is not restrict­ed by Arti­cles 1 and 2.

2. Any infor­ma­tion received under para­graph 1 by a Con­tract­ing State shall be treat­ed as secret in the same man­ner as infor­ma­tion obtained under the domes­tic laws of that State and shall be dis­closed only to per­sons or author­i­ties (includ­ing courts and admin­is­tra­tive bod­ies) con­cerned with the assess­ment or col­lec­tion of, the enforce­ment or pros­e­cu­tion in respect of, the deter­mi­na­tion of appeals in rela­tion to the tax­es referred to in para­graph 1, or the over­sight of the above. Such per­sons or author­i­ties shall use the infor­ma­tion only for such pur­pos­es. They may dis­close the infor­ma­tion in pub­lic court pro­ceed­ings or in judi­cial deci­sions. Notwith­stand­ing the fore­go­ing, infor­ma­tion received by a Con­tract­ing State may be used for oth­er pur­pos­es when such infor­ma­tion may be used for such oth­er pur­pos­es under the laws of both States and the com­pe­tent author­i­ty of the sup­ply­ing State autho­ris­es such use.

3. In no case shall the pro­vi­sions of para­graphs 1 and 2 be con­strued so as to impose on a Con­tract­ing State the obligation:

(a)   to car­ry out admin­is­tra­tive mea­sures at vari­ance with the laws and admin­is­tra­tive prac­tice of that or of the oth­er Con­tract­ing State;

(b)   to sup­ply infor­ma­tion which is not obtain­able under the laws or in the nor­mal course of the admin­is­tra­tion of that or of the oth­er Con­tract­ing State;

©   to sup­ply infor­ma­tion which would dis­close any trade, busi­ness, indus­tri­al, com­mer­cial or pro­fes­sion­al secret or trade process, or infor­ma­tion the dis­clo­sure of which would be con­trary to pub­lic pol­i­cy (ordre public).

4. If infor­ma­tion is request­ed by a Con­tract­ing State in accor­dance with this Arti­cle, the oth­er Con­tract­ing State shall use its infor­ma­tion gath­er­ing mea­sures to obtain the request­ed infor­ma­tion, even though that oth­er State may not need such infor­ma­tion for its own tax pur­pos­es. The oblig­a­tion con­tained in the pre­ced­ing sen­tence is sub­ject to the lim­i­ta­tions of para­graph 3 but in no case shall such lim­i­ta­tions be con­strued to per­mit a Con­tract­ing State to decline to sup­ply infor­ma­tion sole­ly because it has no domes­tic inter­est in such information.

5. In no case shall the pro­vi­sions of para­graph 3 be con­strued to per­mit a Con­tract­ing State to decline to sup­ply infor­ma­tion sole­ly because the infor­ma­tion is held by a bank, oth­er finan­cial insti­tu­tion, nom­i­nee or per­son act­ing in an agency or a fidu­cia­ry capac­i­ty or because it relates to own­er­ship inter­ests in a person.”

ARTICLE II

Each Con­tract­ing State shall noti­fy the oth­er in writ­ing, through the diplo­mat­ic chan­nel, of the com­ple­tion of the pro­ce­dures required by its laws for the bring­ing into force of this Pro­to­col. The Pro­to­col shall enter into force 30 days after the date of receipt of the lat­er of these noti­fi­ca­tions and its pro­vi­sions shall have effect on that date.

ARTICLE III

This Pro­to­col, which shall form an inte­gral part of the Agree­ment, shall remain in force as long as the Agree­ment remains in force and shall apply as long as the Agree­ment itself is applicable.

IN WITNESS WHEREOF the under­signed, being duly autho­rized there­to by their respec­tive Gov­ern­ments, have signed and sealed this Pro­to­col in two orig­i­nals in the Eng­lish and Hin­di lan­guages, both texts being equal­ly authen­tic. In case of diver­sion of inter­pre­ta­tion the Eng­lish text shall prevail.

DONE at Pre­to­ria, on this 26th day of July, 2013.

[F.NO.500/144/2005-FTD-II]